Fourth Circuit Resolves Contentious Dress Code Case
May a publicly funded charter school impose a dress code that requires girls to wear skirts? The Fourth Circuit, en banc, answered this question in the negative in a raucous split decision. Peltier, et al., v Charter Day School, Inc., ___ F4th ___ (4th Cir 2022) (Case Nos. 20-1001 and 20-1023, June 14, 2022).
The facts were straight-forward. Charter Day School, Inc. (CDS) was, as its name indicates, a charter school under North Carolina law; which, for Michigan readers, appears, judging from the opinion, to be similar to Michigan law. CDS was party to a management agreement with a private for-profit company owned by its founder, the Roger Bacon Academy, Inc. (RBA). CDS adopted a dress code like dress codes in effect decades ago. Significantly, girls were required to wear dresses, skirts, or skorts when they were not participating in physical education or sports. Boys were also subject to what might be called old-fashioned dress and appearance codes. Plaintiffs sued on behalf of their female daughters, alleging the skirt requirement violated the Equal Protection Clause and Title IX of the Civil Rights Act of 1972. The majority opinion characterized the motive behind the skirt requirement as the view that girls were “fragile vessels” who deserved “gentle” treatment by boys, a goal presumably advanced by forcing them to wear skirts.
The case generated a great deal of interest, as reflected by the number of law firms and amici who submitted briefs. The case also fomented tremendous and acrimonious disagreements between the Fourth Circuit judges. Those who choose to read the 103 pages of the court’s opinion, as well as the concurrences and dissents, will see how many ways the underlying legal issues may be argued and resolved. Not to mention an airing of related political and social concerns. This summary will limit itself to the court majority’s opinion and implications.
Turning to the merits, the court analyzed plaintiffs’ Equal Protection claim utilizing intermediate-level scrutiny. In other words, could CDS prove the skirt requirement served an important governmental interest and was substantially related to that interest? The court held CDS’ rationale for the skirt requirement did not meet this standard because it was based an overly broad, gender-based stereotypes. The court deemed irrelevant considerations such as: sex-based restrictions on boys’ dress and appearance, CDS’ mission, parental preferences, and diverse approaches to public education. The court reached a similar conclusion with respect to plaintiffs’ Title IX claim, sending it back to the trial court for an evidentiary hearing.
There is an interesting side note with respect to the claims against RBA, the private management company. The court held RBA was not a state-actor with respect to plaintiff’s Equal Protection claim and, therefore, dismissed that claim with respect to RBA. However, the court held RBA was a recipient of federal funds for Title IX purposes because it received most of its revenue from publicly funded charter schools. There may be room for argument on this point.
There is also an underlying socio-political issue that probably accounts for the judges various opinions. What about parents who, for whatever reason, wish to have their children educated in an environment where the sexes are not treated alike? Must they do without public funding? Or do entirely without if they can't afford a private school? Presently, the answer depends on whether they live in states that provide vouchers for private education, as private schools that do not receive federal funding are subject to neither the Equal Protection Clause nor Title IX.